Citation Nr: 0410836
Decision Date: 04/26/04 Archive Date: 05/06/04
DOCKET NO. 01-05 314 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for migraine headaches.
2. Entitlement to service connection for a gastrointestinal
disorder.
3. Entitlement to service connection for a hiatal hernia.
4. Entitlement to service connection for a visual acuity
disability.
5. Entitlement to service connection for scarring of the liver,
bladder, and gallbladder.
6. Entitlement to service connection for a shortened cervix.
7. Entitlement to service connection for angioedema and
urticaria.
8. Entitlement to service connection for hepatitis B.
9. Entitlement to service connection for fibromyalgia.
10. Entitlement to service connection for dysmenorrhea and
amenorrhea.
11. Entitlement to service connection for galactorrhea.
12. Entitlement to service connection for a gynecological
disorder other than dysmenorrhea, amenorrhea, or already service-
connected gynecological disorders (hysterectomy, uterine fibroids,
and left salpingo-oophorectomy).
13. Entitlement to an increased evaluation for lichen simplex,
currently evaluated as 10 percent disabling.
14. Entitlement to a determination of permanency of a total
rating for the purpose of establishing entitlement to Dependents'
Educational Assistance under Chapter 35 of the United States Code.
(The claim of entitlement to service connection for hypertension
is the subject of a separate Board decision.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Michael Holincheck, Counsel
INTRODUCTION
The veteran served on active duty from December 1976 to August
1981 and from May 1984 to October 1987 with additional service in
the National Guard from August 1974 to December 1976.
This matter comes before the Board on appeal from rating decisions
by the Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.
In a decision dated May 28, 2002, the Board denied the veteran's
claim for benefits for all of the issues listed above. The Board
found that new and material evidence had been received to reopen
the veteran's claim for service connection for hypertension. The
issue was later the subject of additional evidentiary development
by the Board in accordance with practices then in effect.
Thereafter, the veteran filed an appeal to the United States Court
of Appeals for Veterans Claims (Court). In July 2003, the
veteran's attorney and the VA's General Counsel filed a joint
motion to vacate the Board's May 2002 decision, except for the
decision to reopen the claim of service connection for
hypertension, and remand the case for further action consent with
the joint motion. In August 2003, the Court granted the motion
and remanded the case to the Board for readjudication.
The Board wrote to the veteran in September 2003 and advised her
that she had 90 days to submit additional evidence or argument in
regard to her appeal. The veteran responded that she had nothing
further to submit in November 2003. Her representative submitted
additional argument on her behalf in February 2004.
In May 2002, a claim for an earlier effective date for the award
of a 100 percent rating for a post-traumatic stress disorder, and
claims for increased ratings for left salpingo-oophorectomy, scar
from a Caesarian section delivery, and residuals of a hysterectomy
were referred to the RO for further development as deemed
necessary. These issues are again referred to the RO.
REMAND
As noted in the Introduction section the veteran's case was before
the Board in May 2002. The Board denied the veteran's claims with
the exception of reopening her claim of service connection for
hypertension. The veteran appealed to the Court and the Court
issued an order in August 2003, granting a joint motion, which
vacated the Board's decision as to the denied issues.
The joint motion suggested that the veteran had not been provided
the required notice and assistance as required by the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114
Stat. 2096 (codified as amended at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002)) and VA's implementing
regulations. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as
amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2003)); see also Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The proper notice and assistance must be provided upon
remand in order to comply with the Court order.
The veteran was seeking an increased rating for service connected
lichen simplex as part of her appeal. The Board notes that by
regulatory amendment effective August 30, 2002, substantive
changes were made to the schedular criteria for evaluating
disabilities involving the skin. See 67 Fed. Reg. 49,590-49,599
(2002). The RO has not yet had an opportunity to apply the new
regulations in evaluating the veteran's lichen simplex and the
veteran has not yet been apprised of the change in regulations.
The change in regulations must be considered on remand following
an updated VA examination of the veteran's service-connected
disability.
The joint motion further maintained that the Board had relied on
its own medical conclusions to decide that the veteran's
galactorrhea, cervix shortening, and scarring of the liver,
bladder and gallbladder did not constitute disabilities.
Accordingly, a medical opinion will be sought to identify any
possible disability and whether it is related to military service.
The veteran is also seeking service connection for a number of
other issues. The Board has determined that affording the veteran
VA examinations would greatly assist in the evaluation of her
claim. Therefore, additional instructions for the necessary
examinations are provided below.
Accordingly, the veteran's case is REMANDED to the RO for the
following action:
1. The RO must review the claims file and ensure that all
notification and development actions required by 38 U.S.C.A. §§
5102, 5103, and 5103A (West 2002) are fully complied with and
satisfied. See also 38 C.F.R. § 3.159 (2003). The veteran should
be specifically told of the information or evidence she should
submit, if any, and of the information or evidence that VA will
yet obtain with respect to her claims. 38 U.S.C.A. § 5103(a)
(West 2002).
2. The RO should contact the veteran to obtain the names and
addresses of all medical care providers who have treated her for
any claimed disability that is the subject of the current appeal.
After securing the necessary release(s), the RO should obtain
those records that have not been previously secured.
3. The veteran should be afforded a VA dermatology examination to
assess the current status of her service-connected lichen simplex
and to address her claim for service connection for angioedema and
urticaria. The claims file and a copy of this remand should be
provided to the examiner prior to the examination. The examiner
should provide a discussion of the veteran's current symptoms of
her lichen simplex, being sure to address all areas of the body
where this is present, to include the face. The examiner's
finding should be consistent with the regulations found at 38
C.F.R. § 4.118 as recognized both before and after the changes of
August 2002.
The examiner is also requested to provide an opinion as to whether
the veteran carries a diagnosis of angioedema and urticaria. If
so, the examiner is further requested to provide an opinion as to
whether it is at least as likely as not that any such condition is
related to military service, or whether any such problem was
caused or made worse by already service-connected disability. The
examiner should provide a complete rationale for all conclusions
reached.
4. The veteran should be provided an gynecological examination to
evaluate her claims of galactorrhea, surgical residuals involving
her cervix, whether there is any current evidence of dysmenorrhea
and amenorrhea and whether is any evidence of any other
gynecological disorder other than those for which service
connection is already in effect. With respect to the
galactorrhea, the examiner is requested to provide an opinion as
to whether the condition constitutes a disability as contemplated
by the VA Schedule for Rating Disabilities at 38 C.F.R. Part 4.
In regard to the veteran's cervix, the examiner is requested to
provide an opinion as to whether any shortening of the cervix,
that is a residual from the veteran's hysterectomy in 1994,
constitutes additional disability, especially given that the
veteran has undergone a hysterectomy that is already service
connected. The examiner is requested to provide an opinion as to
whether there is any evidence of chronic dysmenorrhea and
amenorrhea since June 1999 when the veteran submitted her current
claim. If so, does the condition constitute a disability under
Part 4? See 38 C.F.R. § 4.116. Finally, the examiner is
requested to identify any and all other gynecological conditions
present and provide an opinion as to whether it is at least as
likely as not that any diagnosed condition (other than
hysterectomy, uterine fibroids, and left salpingo-oophorectomy) is
related to the veteran's military service, or has been caused or
made worse by already service-connected disability. The examiner
should provide a complete rationale for all conclusions reached.
5. The veteran is also seeking entitlement to service connection
for migraine headaches, gastrointestinal disorder, hiatal hernia,
visual acuity disability, scarring of the liver, bladder and
gallbladder, hepatitis B and fibromyalgia. The veteran should be
afforded the appropriate VA examinations to determine if each
claimed disorder exists. The claims file and a copy of this
remand must be made available and reviewed by the examiner(s)
prior to the examination. All necessary tests should be conducted
which the examiner(s) deems necessary. The examiner(s) should
review the results of any testing prior to completion of the
report. The respective examiners are requested to provide an
opinion as to whether it is at least as likely as not that the
claimed disorder is related to the veteran's military service, or
has been caused or made worse by already service-connected
disability. The examiner should provide a complete rationale for
all conclusions reached.
(The veteran should be advised that failure to appear for any
examination as requested, and without good cause, could adversely
affect her claim, to include denial. See 38 C.F.R. § 3.655
(2003)).
6. After undertaking any other development deemed appropriate,
the RO should re-adjudicate the issues on appeal. If any benefit
sought is not granted, the veteran and her representative should
be furnished with a supplemental statement of the case and
afforded an opportunity to respond before the record is returned
to the Board for further review.
By this remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran until she
is notified by the RO. The veteran has the right to submit
additional evidence and argument on the matters the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be handled
in an expeditious manner. See The Veterans Benefits Act of 2003,
Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be
codified at 38 U.S.C. §§ 5109B, 7112).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board
is appealable to the United States Court of Appeals for Veterans
Claims. This remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2003).